Nullification Meets State Religion in Raleigh?

In response to an ACLU lawsuit against a North Carolina county maintaining that the prayers said at the opening of county commissioners’ meetings violate the Constitution’s establishment clause, state legislators have introduced a bill claiming the federal government has no authority over the subject. Its two substantive provisions:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.

The difference between the commissioners’ prayers and the ones delivered at the beginning of sessions of Congress is the presence of sectarian identifiers like Jesus and the virgin birth. The lawsuit claims that since November 2007, 139 out of 143 meetings have included these insufficiently nondenominational prayers, though it only actually lists thirteen. Since there’s some grey area that might be cause for suspicion, here’s one of the early and more obvious examples listed, from December 2007:

Father, we thank you for your grace and your glory. We ask you to be with us this evening as we conduct the business of Rowan County. We’d also like to ask you to have your will as it relates to all the burdens and problems the citizens of Rowan County have today. As we get ready to celebrate the Christmas season, we’d like to thank you for the Virgin Birth, we’d like to thank you for the Cross at Calvary, and we’d like to thank you for the resurrection. Because we do believe that there is only one way to salvation, and that is Jesus Christ. I ask all these things in the name of Jesus. Amen

At least one of them appears to have gone beyond routine statements of Christian belief. The Christian Science Monitorreports that one prayer went, “I pray that the citizens of Rowan County will love you Lord, and that they will put you first.” That seems less appropriate than most of the others.

The suit also contends the practice violates the religious liberty and equal protection provisions in Article I of North Carolina’s constitution, though that’s a bit harder to see.

For their part, most of the commissioners are not backing down, despite the ACLU’s request for a temporary injunction that would end the practice. Charlotte’s CBS affiliate reported one would stop. As another told the Salisbury Post, “I’m not surprised. When they first informed our attorney in February of last year our practice was illegal, we just continued the practice.” They appear to have the support of their community:

“All citizens of Rowan County deserve to be treated equally by their government, regardless of their personal religious beliefs,” said Chris Brook, legal director for the ACLU in North Carolina. He said the prayers have “created an environment where citizens of different beliefs are made to feel alienated.” The ACLU sent a letter to Rowan County commissioners in February 2012, asking the board to stop the prayers. At the time, the ACLU said it had received five complaints from residents.

An overflow crowd attended the next commissioners’ meeting, on March 5, 2012, with most of the public supporting county commissioners. A number of residents spoke at the meeting, saying the prayers were a constitutional right. Sides, the county commissioner, reportedly said he would be willing to go to jail in defense of opening the meeting with prayers. “I will continue to pray in JESUS name … I volunteer to be the first to go to jail for this cause …” Sides wrote in an email, according to the ACLU’s suit.

The “vast majority spoke in favor of the sectarian prayers” after the ACLU filed its lawsuit, reported WBTV.

A statement from the ACLU makes the state legislature’s reasons for stepping in pretty clear–precedent is clearly against the commissioners:

A 2011 ruling by the Fourth Circuit Court of Appeals in another ACLU case, Joyner, et al. v. Forsyth County Board of Commissioners, made clear that, if local boards decide to open meetings with invocations, the prayers may not indicate a preference for one faith. After the U.S. Supreme Court declined to review that ruling, more than 20 local governments throughout North Carolina changed their opening invocations in order to comply with the law.

In a development that will surprise no one, the usual invocations racism and neo-secessionism that accompany nearly any assertion of state sovereignty are being trotted out in response to the statehouse bill. The Huffington Post tacks on an alarmist link-baiting headline. It’s worth pointing out that denying federal authority to foreclose the establishment of a state religion is not the same as wanting to establish one—though for secularists who see those Rowan County prayers as discriminatory, that’s a distinction without a difference.

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28 Responses to Nullification Meets State Religion in Raleigh?

The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference.It states that the government will not establish a state religion and will not forbid a religion. In short, government will stay out of religion.

For me, this is not a religion issue but a personal rights issue. Everyone should have the right to practice any religion they want to or no religion at all without feeling the government objects.

Schools, through their Social Studies programs, are supposed to teach our political system, which includes the Constitution and that includes the Bill of Rights. The very first amendment deals with the relationship of the government with the citizens’ right to Freedom of Religion.

These county commissioners, and the citizens who support their actions, are demonstrating a total lack of appreciation for the rights we are all guaranteed in the Bill of Rights. No one is saying they cannot practice the religion of their choice, all the ACLU is doing is saying you cannot, as a government official, in an official capacity, support one religion over another. The ACLU, in this case, is right.

so, they vow to disregard the US Constitution, in direct violation of their own constitution??
Article 1.
Sec. 3. Internal government of the State.

The people of this State have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.

And if (as appears apparent) the intent and will of the legislators is to provide for Christian (and Christian only) prayers, to the exclusion of all others, does that not violate this section?

Sec. 13. Religious liberty.

All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.

Dear North Carolinians, asserting the “Bill of Rights didn’t say anything about state governments so nyah-nyah-nyah-nyah-nyah” doctrine hasn’t worked since the Incorporation doctrine was established in 1868. If you know anyone who made it to the seventh grade, they can tell you about this from Civics class. Mayors also can’t bar free speech in their cities, county magistrates can’t decide that women won’t vote in their elections, and Willy-Bob, being King of your Household does not entitle you to establish slavery within the boundaries of your dominion.

The problem with government involving itself in religion is not that any particular religion is promoted, but rather that government seeks to use religion to deify its own shaky moral authority, which after all is only human and subject to much error.

Quite frankly, it is how worship of God is turned into rag worship, as Mark Twain put it, conflated into the deification of patriotism.

Thereby, true religion is corrupted and a false substitute is corrupting.

As an elected official, I prayed that God, whom I trust in through Jesus, would give me the strength and wisdom to do the right thing in serving my neighbors, not myself. I didn’t announce that publicly to try to convey some divine moral authority for the decisions that ensued, but anyone interested in my motivations might have found out in personal conversation.

In a development that will surprise no one, the usual invocations racism and neo-secessionism …

Maybe that is because Governor Pat McCrory had a Confederate flag on display in the legislative chambers for “Confederacy month” observances recently while this nullification bill bill was being drafted. Any time you claim that the SCOTUS has no constitutional power to interpret the constitution and that the state can do as it pleases and ignore federal laws…to wit:

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion; and Whereas, Rowan County, North Carolina, asserts that the protections afforded to citizens of the United States under the First Amendment are not in any way to be abridged when such citizens become government actors by virtue of their appointment, election, contract, employment, or otherwise engagement; and Whereas, Rowan County, North Carolina, requests and encourages the North Carolina General Assembly to pass a resolution declaring that the State of North Carolina does not recognize the authority of federal judicial opinions arising from the exertion of powers not granted to the federal government by the Constitution of the United States;

Ironically, to insist that only a prayer in Jesus’ name is valid exemplifies what Jesus was warning against when He advised us not to pray as the heathen do. It was they who thought that a god wouldn’t listen unless one got its name exactly right.

This, in my opinion, is the direction the religious right should take. If you want to legislate Christian morals and traditions you need to establish a State Religion.

I am happy to see defiance of Washington on any issue be it Theocracy or decriminalization of marijuana. Imperial Washington has imposed on us a Fascist Police State. Nullification and secession movements will provide the way out.

The North Carolina commissioners and legislators are correct, that neither the Supreme Court nor the Fourth Circuit Court of Appeals, had the right to impose the requirements of the First Amendment on the government of North Carolina or of any state. This was certainly understood at the time of the ratification of the Bill of Rights, for a number of states at that time and continuing for decades had established state churches. And there is nothing in the text or history of the Fourteenth Amendment that indicates either the due process or equal protection clauses were intended to change this state of constitutional law. The theory that the Supreme Court could impose its will respecting the place of religion in society upon the states, or impose any other provision of the Bill of Rights upon them, was simply its own invention.

That being said, even if the provisions of the religious liberty clause (which North Carolina itself recognizes) and the non-establishment clause were to be applied to state governments and their subdivisions, that is no ground to prohibit, or allow the courts to regulate, the text or content of public prayers said before government assemblies, be they the Congress of the United States, the General Assembly of the North Carolina, or any county board of commissioners or city or town council. Each of these bodies has the authority to decide for itself its religious practices, free from interference of any court or other government body. That is THEIR right of religious liberty, and is required as well under the doctrine of the separation of powers. The judicial branch may not interfere in the internal workings of the executive and legislative branches insofar as they do not encroach upon the rights of others. But prayers said as part of a meeting of a public body or assembly are the concern only of those bodies and their members. They are not imposed upon the citizens of their jurisdictions and there is no pretense that they express the sentiments and desires of anyone other than the members of those bodies. Therefore they do not constitute an “establishment” of religion forbidden by the First Amendment to Congress, and certainly not to the States.

If members of such bodies have a problem with the prayers being said before their assemblies that is a matter to be taken up and resolved by the bodies themselves. If members of the general public have a problem with such prayers, they can replace the members of the government bodies. That is why we have elections. But in no body, be it public or private, can a minority dictate to the majority what religious practices and observances are to be forbidden or prescribed.

The constitution says what it says, regardless of whether we believe it should be interpreted some other way. wrt religion, it says “CONGRESS shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” . The rest of the bill of rights is not limited to just congress. So state and local governments may make such laws. And why not? Especially very local governments. What if a group of particular believers established their own small town or village? Government is best the more local it is. That small religious based village currently has the right to establish laws respecting their religion.

If the nation doesn’t like how the first amendment is written, then it needs to be changed with another amendment. That would be a difficult thing to do, as it should be.

So given NC’s stance, if my state decides to elect a Athiest who opts to ban all churches and private worship, and states that the government will only treat equally those that abandon the myth of religion, my only option is to abandon my home and escape the town before they decide that the anti-slavery clause doesn’t apply to them either.

Nah. I’ll opt for the right to not have to worry about what my State or Federal Big Government considers acceptable Gods or Goddesses when Sunday rolls around.

Beyond the typical arguments, I would think that Christians, who are worrying over more and more people being ‘ant-religious’, would rather not give any part of the US the power to declare religions invalid.

It is ironic that as a lifelong non-Christian I should be faced with insisting on slippery-slope arguments, a practice I’ve chastised (and sometimes condemned) when Christians bemoaning the decline of Christian morality raise it as justification for legislation of their moral code.

We are no more a “Christian nation” than we are a nation of Europeans. The Bill of Rights is our best and only protection against the tyranny of the majority — which, stipulating the slippery-slope objection, the NC legislature is abetting at the least — so any call to hostility towards it is a call to hostility to anyone not a member of said majority.

I think we (generic) should let this ride and see what happens. Let one non-Christian* stand up after the bill becomes law and invoke his or her right to religious freedom during a session, and see what transpires. That is the litmus test against which the slippery-slope fears may be measured.

Oh, by the way, speaking of failing to learn from history: how exactly did the divine right of kings work out for Western Civilization?

* For the record: I am one such non-Christian who, on the very off chance that I’d actually be elected to the NC legislature, would not hesitate to do so at the very first opportunity.

A clarification, since some of the commentators still aren’t geting it.

First, the bill is not a law of any sort, it’s just a resolution. Even if it WERE pushing to establish a State Religion (it’s not) it would still be meaningless as an act of the legislature because it’s a resolution, not a law.

Second, the bill is doing little or nothing more than defining proper Constitutional jurisdiction, by insisting that the Establishment Clause only applies to Congress. Guess what? They are correct, the Establishment Clause does only apply to Congress.

Their only goal, is to get FedGov to butt out of County affairs. A free people – and particularly free libertarian and conservative peoples, ought to understand that it’s not up to Washington DC how Rowan County prays, it’s up to Rowan County, full stop!

This smacks of “I don’t want Washington DC telling my local government how to run it’s business, unless it’s one of my pet issues.”

Yes, the choice of how they worded it is a bit unfortunate. If I were writing it, or had I assisted Ford in writing it, I’d have clarified the intent of denying FedGov the authority and jurisdiction, and in the positivism section I’d have focused on the “nor prohibiting the free exercise thereof” part of the phrase, and thus eliminated the left’s ability to rip all of this out of context.

But the fact that it was a Freshman who wrote the bill and misgauged what the media would do to it, does not alter the fact that ALL it does is make a jurisdictional statement opposing FedGov’s influence in the matter, and further that ALL it is is a resolution, not even a law of any sort.

Even the libertarians and the paleoconservatives, known for hyper-rationality, are jumping on board the “ZOMG NC wants to set up a State Church!!!11!1” nonsense being spun from the bowels of leftist media here.

SMH – really? So it’s “freedom and liberty, and obey the Constitution — unless it’s one of my pet issues — and then I’ll be as irrational as the hyper-statists” all over again?

Glen Bradley: First, the bill is not a law of any sort, it’s just a resolution.

I’m grateful for the correction, well taken.

Second, the bill is doing little or nothing more than defining proper Constitutional jurisdiction, by insisting that the Establishment Clause only applies to Congress.

Glen, that seems very reasonable, so I have a question: If I were to stand up during a NC legislature session as a duly elected member and stand on my rights as a citizen of the United States, would the legislature be within its jurisdictional rights to censure me, charge me with a crime (some misdemeanors come to mind) or even have me expelled from it? Given that even a resolution can be in de facto conflict with federal law, where would I stand in that scenario?

Well, I can see the argument for that. In the end, it does seem very possible for a state to establish their own religion. My statement is currently that those evoking this won’t like the results of opening that can of worms. Once those outside their faith start pulling these levers, you’ll hear cries against the state government ‘going rogue’. It’s not much different to how they wanted the government to control marriages, until the government attempted to control it in a way they don’t like.

Now I can respect those that do not mind the athiest example I put above as being consistent, and while I’m not quite sold on the theory I can see the idea is to focus on a steady principle, even if it will cause issues to other things you care about.

I don’t believe NC is in a similar mindset. I believe they are simply grasping at any concept that ‘works’ to keep their agenda. They’ll respect state rights until the state works against them, then they’ll turn back to the Fed. If both fails, anarchy and revolution, or perhaps socialism. It’s the Artful Dodger of politics.

Myself, if we really DO want to go the ‘states can act like minicountries’ route, I’d rather an easy out of my state before Mob rule finds my family.

It’s been the law of the land, for a long time. Emerson v. Board of Education remains current Supreme Court precedent, and has not been challenged since it was handed down. Nor do I have any suspicion that the current Court would entertain overturning Emerson and once again permit states to establish official religions.

North Carolina voted for Obama in 2008 (though Romney in 2012); and is hardly immune from the demographic changes sweeping the country. Given that–I would think that Christians would be wise to embrace the shelter of the Establishment Clause, rather than try and demolish it. Otherwise, what prohibits a state from enacting Sharia, or banning religion, or some other act?

Emerson v. Board of Education was bad law when it was handed down (because it rested upon an invalid theory of interpreting the Fourteenth Amendment) and it remains bad law today. What legislators in North Carolina are proposing is that the General Assembly declare that holding invalid under the Doctrine of Nullification. If the Doctrine is sound, there would be no need for the Supreme Court to overturn the decision – it would be something every state could do for itself.

Now, I won’t argue on behalf of the Doctrine of Nullification, nor on behalf of the State of North Carolina establishing a state church, as it had when it entered the Union, but those legislators’ opinion of the Supreme Court opinion is correct. What prayers those county commissioners want to utter or invite others to utter prior to their board meetings is no business of the U.S. Supreme Court or any other Court established under the U.S. Constitution.

It seems to me that maybe the very first (Brobdingnagian) task of anyone wanting to bring the Republican base around to reality is to point out to them that there’s no fundamental difference between them imposing their choices on others, and the Left/liberals imposing their choices on others.

It’s just gob-smackingly stupid these days (not to mention exasperating) to see that base rightly get upset about this or that liberal/Lefty imposition of choice, and then totally blow not just their credibility but the very principle of choice out the window when in the very next breath they’re aghast at people not wanting to be forced to sit through something like … praying to their deity.

E.g.: “My God Obamacare is *forcing* us to buy insurance! And they are trying to *force* us to give up our guns or register them!”

And in the next breath: “My God they are trying to stop us from forcing people to pay for and display the Ten Commandments at Courthouses! And My God they are trying to stop us from forcing women who want abortions to first watch some gruesome video!”

How in the world can anyone take the side of these people when they can’t even recognize *this*?

Emerson v. Board of Education was bad law when it was handed down (because it rested upon an invalid theory of interpreting the Fourteenth Amendment) and it remains bad law today.

So says you.

The SCOTUS, and the vast majority of the country, likely disagree with your interpretation. Perhaps if there were five Antonin Scalia’s on the current Court, there would be a snowball’s chance in hell for a century-plus of 14th Amendment and Establishment Clause jurisprudence to be overturned, but at present time there’s at most three of them. CJ Roberts is unlikely to be part of such a scheme, nor would Justice Kennedy. And the court’s four liberals you can forget about.

“Emerson v. Board of Education was bad law when it was handed down (because it rested upon an invalid theory of interpreting the Fourteenth Amendment) and it remains bad law today.”

Isn’t that always the argument? A Supreme Court decision is “bad law” because you happen to disagree with the decision?

Your personal feelings aside, the decision stands until such time as it is overturned. Generally speaking, the Court has come down rather firmly on the side of the Establishment Clause applying at the state and local level, and it is beyond dispute that the federal courts have supremacy over state courts.

With regards to the “well it isn’t a law, it’s only a resolution” argument, I’d question what exactly the legislature is hoping to accomplish by thumbing their collective noses at the US Constitution? Nullification and the like apparently still has some appeal among people who haven’t grasped the last 150 years of American history, but is it the job of the state legislature to encourage that ignorance?

But my biggest problem with all of this is the self-importance of the people involved. I’m sorry, but it is not the duty of a public servant – whether they be a schoolteacher, town council member, or state legislator – to lead citizens in prayer. That is a job for the clergy. If you want to be a priest, apply for a job at the church.

Second, the bill is doing little or nothing more than defining proper Constitutional jurisdiction, by insisting that the Establishment Clause only applies to Congress. Guess what? They are correct, the Establishment Clause does only apply to Congress.

Whatever the merits of that argument, it isn’t the law, and hasn’t been the law for a very long time. I understand the impulse to shake a fist at the federal government when it starts exercising its authority over purely local matters, but that’s all this is.

And I think, on balance, having the Bill of Rights restrict the states the same way it restricts Congress is a good idea. This may seem like a petty issue to some, but the theory that allows this to be litigated in federal court is the same one that prevents local and state governments from shutting down newspapers, confiscating all firearms, and using coercive police tactics against unpopular political organizations.

Hey, where were all you people who don’t believe in Incorporation last year when the Supreme Court was striking down our state laws limiting corporate campaign contributions? Same place you were when they struck down Chicago’s gun control regime, I guess.